Vol. Ip411
Chapter 23
The Independent State

Since the State was now independent it was desirable that a permanent form of government should displace the provisional government as soon as possible. Accordingly on the 9th of August, 1776, the Council of Safety, in session at Halifax, resolved "that it be recommended to the good people of this now Independant State of North Carolina to pay the greatest attention to the Election to be held on the fifteenth day of October next, of delegates to represent them in Congress, and to have particularly in view this important Consideration, that it will be the Business of the Delegates not only to make Laws for the good Government of, but also to form a Constitution for this State, that this last, as it is the Corner Stone of all Law, so it ought to be fixed and Permanent, and that according to as it is well or ill Ordered, it must tend in the first degree to promote the happiness or Misery of the State."

This resolution was the signal for the opening of a campaign famous in our history for its violence. Feeling ran high. Riots were numerous. Everywhere democracy exulting in a freedom too newly acquired for it to have learned the virtue of self-restraint expressed itself in irregularities, tumults, and carousings. In Guilford County many voters were intimidated by threats of personal abuse; at one voting place a candidate, "with a whip clubbed in his hand," took possession of the polls and drove his opponents away. In Orange County the election was held in such "a tumultuous and disorderly manner," that the Convention afterwards declared it null and void. Drunkenness and unbridled abuse characterized the campaign in Chowan. Throughout the State the campaign opened wider than ever the cleavage in the Whig party. The Radicals were determined to wrench control of public affairs from the Conservatives. Abner Nash in New Bern and Thomas Jones in Chowan, both Conservatives,
p412 won seats only by narrow margins from constituencies in which they had rarely had serious opposition. In New Hanover so strong was the opposition to William Hooper that, to assure his having a seat in the Convention, Cornelius Harnett relinquished his hold on the borough of Wilmington in Hooper's favor, himself standing for election in Brunswick County. Samuel Spencer was defeated in Anson, and John Campbell, for many years a representative in the Assembly as well as in the four Provincial Congresses, was left out of the Bertie delegation. The climax of the campaign was the fight in Chowan County against Samuel Johnston. Johnston was recognized as chief of the Conservatives, and the Radicals determined that he should not have a seat in the Convention. "No means," says McRee, "were spared to poison the minds of the people; to inflame their prejudices; excite alarm; and sow in them, by indirect charges and whispers, the seeds of distrust. * * * It were bootless now to inquire what base arts prevailed, or what calumnies were propagated. Mr. Johnston was defeated. The triumph was celebrated with riot and debauchery; and the orgies were concluded by burning Mr. Johnston in effigy."1 While the chief of the Conservatives was thus defeated, Willie Jones, his great radical rival, was elected. The Radicals as a rule were successful in those counties in which the influence of the former Regulators was most potent.

When the Convention assembled at Halifax, November 12th, the violence of the campaign had been followed by a reaction. Richard Caswell, a moderate if not a conservative, was unanimously elected president. The committee appointed to frame a "Bill of Rights and Form of a Constitution for the Government of this State," embraced among its members Willie Jones, Thomas Person, and Griffith Rutherford, radical leaders; Allen Jones, Thomas Jones, Samuel Ashe, and Archibald Maclaine, conservative leaders; Richard Caswell and Cornelius Harnett, who may be classed as moderates. Since the adjournment of the preceding Congress the Americans had progressed considerably in the science of constitution-making, and the North Carolina Convention in December had before it several precedents which had been lacking in April. Among them were the constitutions of Delaware, New Jersey, Virginia, and South Carolina. John Adams, too, apparently upon the invitation of Caswell, had submitted
p413 some interesting "Thoughts on Government." Better still were the views of the people of North Carolina, some of whom had reduced their ideas to writing in "instructions" to their delegates. Thus the Scotch-Irish of Mecklenburg and Orange counties, putting into practice the principle of the responsibility of representatives to their constituents, which the Regulators had tried in vain to abolish, had adopted elaborate instructions in which they stated the fundamental principles on which the new government should be founded and outlined some of its details. Many of these details found their way into the new Constitution, but the Convention did not establish, as Mecklenburg desired, "a simple democracy," nor did it accede to Mecklenburg's demand that the Constitution be submitted "to the people at large for their approbation and consent if they should choose to give it, to the end that it may derive its force from the principal supreme power."

With these precedents before them, the men who could not agree on a form of government in April found no such difficulty in December. The committee on the Constitution was appointed on November 13th; on December 6th it reported a Constitution, and on December 12th a Bill of Rights, to the Convention. Both documents received from the Convention the serious consideration their importance demanded. After being debated paragraph by paragraph, the Bill of Rights was adopted December 17th, and the Constitution the following day. These results were not attained without much sharp debate, acrimonious interchange of views, and the acceptance by both factions of numerous compromises. "God knows when there will be an end of this trifling here," wrote Samuel Johnston who, as public treasurer, was at Halifax in attendance on the Convention. "A draft of the constitution was presented to the House yesterday and lies over for consideration. * * * As well as I can judge from a cursory view of it, it may do as well as that adopted by any other Colony. Nothing of the kind can be good." Two days later he was "in great pain for the honor of the Province," and much alarmed at the tendency to turn affairs over to "a set of men without reading, experience or principle to govern them." But Johnston's pessimistic views were scarcely justified. Discussion and a spirit of compromise eliminated most of the "absurdities" which so excited his disgust, and the instrument which finally emerged was in many ways admirably adapted to the needs of the people for whom it was designed. After passing it upon its final reading the Convention directed that a copy be
p414 sent to the state printer "with directions that he do immediately print and distribute a number of copies to each county in the State."

The new Constitution was short and simple. It contained merely the framework of government and the great fundamental principles upon which it was founded. The Convention left the details of administration to be worked out by the legislature. Since 1776 there has been a radical change in the popular conception of what is proper to be included in a constitution. What that change has produced in constitution-making may be seen by contrasting the Constitution of 1776 with its seventy-one sections and general statements of political principles with the Constitution of 1919 with its 198 sections and innumerable details of legislation. Between the new state government and the old colonial government there was no violent break; the members of the Convention were practical statesmen intent only on establishing a working government, not philosophers testing out political theories, and they thought it wise to follow as far as possible the forms with which the people had long been familiar. Following the form of the colonial government, therefore, they provided for a legislative department to consist of two houses, a senate and a house of commons; a judiciary department to embrace a supreme court of law and equity, an admiralty court, and county courts; and an executive department, to be composed of a governor, a council, and such administrative officers as might be needed.

One radical change was introduced, not so much in the form as in the working of the government, viz., the shifting of the center of political power from the executive to the legislative branch. Under the royal government neither the people nor the Assembly exercised any constitutional control over the governor. They had no voice in his selection, no control over his conduct, and no means of removing him from office. His authority was neither fixed nor definite. He acted under instructions from the Crown, whose representative he was, and those instructions he could not make public unless specially authorized by the Crown to do so. As the personal representative of the sovereign he was apt to entertain extravagant ideas of his prerogatives and to seek to extend his power to the utmost extreme. The Assembly struggled hard to hedge him about with restrictions, and the result was a perpetual conflict between the executive and the legislative branches of the government with every advantage in favor of
p415 the former. Through his right of veto the governor had power to negative acts of the Assembly, while the right of prorogation and dissolution placed the very life of the Assembly in his hands. In consequence of this system the people felt hampered in the only branch of the government in which they had a direct share, and chafed impatiently under the restriction. Accordingly when the Convention of 1776 came to define the powers of the chief executive in the new state government, its members were in a decidedly reactionary frame of mind. "What powers, sir," inquired one of Hooper's constituents, "were conferred upon the governor?" "Power," replied Hooper, "to sign a receipt for his salary." In truth the legislative branch now had the upper hand; the pendulum had swung to the other extreme. The governor was to be the creature of the Assembly, elected by it and removable by it. Not only was he shorn of his most important powers; with every power was coupled a restriction. He could take no important step without the advice and consent of the Council of State, and in the selection and removal of his councilors he had no voice. But the Council exercised a restraining authority only; to the governor belonged the right of initiative and this fact, added to the moral influence of the office, gave the incumbent opportunity for service and usefulness.

The Constitution was not the work of any one man, or group of men, though tradition and an occasional reference in contemporaneous documents attribute a few features to the influence of certain individuals. Tradition credits Cornelius Harnett with the authorship of the thirty-fourth article which declares, "That there shall be no Establishment of any one religious Church or Denomination in this State in Preference to any other, * * * but all persons shall be at Liberty to exercise their own mode of Worship;" while Governor Caswell attributed to Harnett's influence the refusal of the Convention to clothe the governor with adequate powers. In the Convention of 1835, John D. Toomer quotes tradition to the effect that Richard Caswell "dictated the principles, if not the terms," of the Constitution; and while the word "dictated" is surely too strong to be used in this connection, it is certain that Caswell's influence was very great. Samuel Johnston, in a letter written in 1777, describes the plan of organization of the legislature as Thomas Burke's plan, of which he heartily disapproved. Johnston himself, although not a member of the Convention, was able to secure the incorporation of many of his views in the Constitution,
p416 especially those relating to the qualifications for suffrage and the method of selection and the tenure of judicial officers. It is interesting to note that Johnston, the great Conservative and, according to his enemies, the stern foe of democracy, advocated annual elections. Writing while a constitution was under discussion in April, he said: "The great difficulty in our way is, how to establish a check on the representatives of the people, to prevent their assuming more power than would be consistent with the liberties of the people. * * * After all, it appears to me that there can be no check on the representatives of the people in a democracy but the people themselves; and in order that the check may be more efficient I would have annual elections." To Johnston's great rival, Willie Jones, has been ascribed the determining influence in the final shaping of the Constitution. The Constitution, declared a delegate in the Convention of 1835, "is thought to have been as much or more the work (the 32d section excepted) of Willie Jones than any other one individual." Upon which Ashe quite pertinently comments that if this is so, Willie Jones was not the radical democrat he is popularly supposed to have been.2

Indeed, the student can make no graver mistake than to suppose that North Carolina, or any other American State, began its independent existence in 1776 as a pure democracy. "America in 1776 was not a democracy. It was not even a democracy on paper. It was at best a shadow-democracy."3 To say this neither impeaches the wisdom nor decries the work of the framers of our first State Constitution. The truth is they did not intend to establish a democracy. The men who led and dominated the political thought in North Carolina in 1776 were English landowners whose political ideals were found in the British Constitution. This Constitution in its full vigor, as has been pointed out before, the early English settlers in North Carolina had demanded should follow them to the New World; and they had insisted that their charters should guarantee to them "all liberties, franchises and privileges" enjoyed by their fellow subjects in England. In 1776 they were in rebellion against the mother country because they believed their rulers had a purpose, in order to carry out their imperialistic policies, to ride roughshod over these same "liberties, franchises and privileges." Accordingly when they came to write their own constitution in 1776 they were much
p417 more determined to write into it those safeguards of political liberty which they considered had been guaranteed by the British Constitution, i.e., representative government, the principle that taxation without representation is tyranny, the right of trial by jury, the privilege of the writ of habeas corpus, the prohibition against the passage of ex post facto laws, the guarantee that no man should be deprived of his life, liberty, or property, "but by the law of the land," and all those other great constitutional principles that characterized the British Constitution — they were much more anxious to secure these principles to themselves and their posterity than they were to establish a democracy.

Consequently the government established by the Constitution of 1776 was a representative democracy in form, but in form only. In fixing the basis of representation in the legislature the Convention paid no attention to population, but gave to every county the same number of representatives in both houses of the General Assembly, and to certain towns one representative each in the House of Commons, without regard to population. Nor were the qualifications for suffrage and office-holding fixed upon a democratic basis. To English statesmen of 1776 — and such were the framers of our first Constitution — manhood suffrage was a Utopian dream, interesting, doubtless, as a subject for philosophical speculation, but an impossibility in practical politics; and, although they conferred the right to vote for members of the House of Commons upon all freemen who had paid their taxes, they were careful to offset this concession to democracy by restricting the right to vote for senators to those who possessed a freehold of •fifty acres. Even less democratic were the qualifications for office holding. No person could be a magistrate of the House of Commons unless he possessed in the county which he represented "not less than •one hundred acres of land in fee, or for the term of his own life;" no person could be a senator unless he possessed in the county which he represented "not less than •three hundred acres of land in fee;" and no person was eligible for the office of governor unless he was possessed of a "freehold in lands and tenements, above the value of one thousand pounds" — an amount comparable to a fortune in our own day of at least ten times that sum. Other undemocratic features forbade any clergyman, while in the exercise of his pastoral functions, to sit in the General Assembly and imposed a sectarian test for office holding designed to exclude Roman Catholics, Jews, and Atheists. The people had no voice
p418 in the selection of their public servants other than members of the General Assembly, for the governor and other executive officers, the councilors of state, and the judges were all elected by the General Assembly; and the judges held office for life. No provision was made for calling a constitutional convention, or for amending the Constitution in any other way, and the Constitution itself, as has been pointed out, was never submitted to the people for ratification. As undemocratic as this Constitution was in form, it was even more so in spirit. Inasmuch as all officials were elected by the General Assembly, and membership in the General Assembly was based upon a property qualification, property not men controlled the government. The theory of property was then, as it always has been, that the best government is that which governs least. It teaches that government has fulfilled its mission when it has preserved order, protected life and property, punished crime, and kept down the rate of taxation. Such was the theory of government which prevailed in North Carolina in 1776 and which, under the Constitution adopted in that year, continued to prevail in North Carolina for more than half a century.

After adopting the Constitution the Convention passed a series of ordinances providing for the government of the State until the close of the first session of the General Assembly under the new Constitution. All those parts of the common law and such statutes in force under the royal government which were "not destructive of, repugnant to or inconsistent with the freedom and Independence of this State, or of the United States of America," were declared to be still in force; and a commission including among its members such eminent lawyers as Samuel Johnston, Archibald Maclaine, James Iredell, Samuel Ashe, Waightstill Avery, and Samuel Spencer, was appointed to revive, and present to the General Assembly bills for re-enacting, such former statutes were "consistent with the Genius of a Free People" and their new form of government. The Convention performed a long delayed act of justice in adopting an ordinance empowering all regularly ordained ministers of the Gospel of every denomination to perform the marriage ceremony according to the rites of their respective churches. Another ordinance defined treason against the new-born State and prescribed its punishment. The state was divided into judicial districts, courts of oyer and terminer and general gaol delivery were erected, and the governor was authorized upon
p419 the recommendation of the Council of State to appoint judges to hold them. William Hooper, Joseph Hewes, and Thomas Burke were appointed a commission to prepare a Great Seal, but in the meantime the governor for the time being was authorized to use his own "private Seal at Arms" on all public documents. Other ordinances named officials who should put the new government into operation. Collectors were appointed for the ports of Currituck, Roanoke, Bath, Beaufort, and Brunswick; and justices, sheriffs, and constables in the several counties; while Richard Caswell was named as governor; James Glasgow as secretary of state;a and Cornelius Harnett, Thomas Person, William Dry, William Haywood, Edward Starkey, Joseph Leech, and Thomas Eaton as councilors of state, until their successors could be chosen by the General Assembly.

Richard Caswell, the first governor of the independent State, was perhaps the most versatile man of his generation in North Carolina. He was distinguished among his contemporaries as surveyor, lawyer, orator, soldier, and statesman. A native of Maryland he had come to North Carolina in 1746 as a youth of seventeen seeking his fortune. He was a surveyor by profession in which he was so skilful and energetic that within three years after his arrival he was appointed deputy-surveyor for the province. North Carolina at that time was an attractive field for surveyors. So rapidly were the vacant spaces in the colony filling up that at almost every sitting of the Council thousands of acres were granted to new settlers, and upon the skill, activity, and integrity of the surveyors depended not only the interests of the Crown but the security of the thousands of pioneers who had braved all the hardships and dangers of the wilderness in their search for homes. A surveyor on the frontier must needs have steady nerves, keen eyes, and trained muscles, combined with indefatigable industry and determination, a cool head, and sound judgment. He must be skilled in woodcraft, and able to circumvent the cunning of the savage and the craft of the land-grabber. His work brought him in close touch with the people, and made him familiar with their conditions of life, problems, and habits of thought. No better school for the training of the man who was to become the civil and military leader of a pioneer people in a great revolution could have been found. It is interesting to note that while Richard Caswell was attending this school in North Carolina, another young surveyor, a few years his junior,
p421 was attending a similar school on the vast estates of Lord Fairfax in the wilds of Western Virginia. The same training that fitted George Washington for his career as commander-in‑chief of the armies and the first chief executive of the United States, fitted Richard Caswell for similar duties in his more contracted field.

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Bronze Tablet on State Highway Near Kinston

Caswell rose to his position of leadership through the regular gradations of service as assemblyman, speaker of the House of Commons, colonial treasurer, member of the Provincial Congress, delegate to the Continental Congress, and president of the first Constitutional Convention. In the various contests between the Assembly and the governor which led up to the Revolution, he stood among the foremost in support of popular government. He was ambitious for military fame, and entered with zest into the two campaigns conducted by Governor Tryon against the Regulators. These campaigns were excellent training for him and served to prepare him for his subsequent military career in the same way that the campaigns of the French and Indian War prepared a much greater American soldier for his career. Caswell was one of the first to see that the contest with the mother country would probably lead to war, and was urgent in his appeals to the Provincial Congress to make military preparations for the emergency. Writing to his son from Philadelphia in 1774, he tells him to urge upon his neighbors that "it is indispensably necessary for them to arm and form into a company or companies of independents," adding: "If I live to return I shall most cheerfully join any of my countrymen even as a rank and file man." When the Congress of August, 1775, provided for raising an army, he entered into the plans with zeal, and upon his election as colonel of the New Bern District, resigned his seat in the Continental Congress to take steps to raise, organize, equip and drill his regiment. His energy enabled him to meet the Scotch Highlanders at
Moore's Creek Bridge
and win the initial victory of the Revolution in the South. His reward for this victory was his election as the first governor of the independent State. As governor he displayed the same zeal and foresight, but for reasons over which he had no control not the same success which had previously characterized his public actions. His patriotism though deep, fervent, and sincere, was stimulated by ambition for personal fame and power. Aggressive and domineering in overcoming opposition, he showed consummate address and skill in winning the confidence
p422 of the people which he possessed to a remarkable degree. He was elected governor of North Carolina seven times.

The executive branch of the new government went into operation January 16, 1777, when Caswell and the other state officials met at New Bern, took the oath of office, and entered upon the discharge of their duties. On April 7th, the legislative branch went into operation when the first Assembly under the Constitution met at New Bern and organized by the election of Samuel Ashe as speaker of the Senate and Abner Nash as speaker of the House of Commons. Since all the ordinances of the Convention were to expire at the close of this session, it fell to the lot of the Assembly to enact such legislation as was necessary to put the new government into complete operation. The Assembly accordingly re-enacted the ordinance declaring what parts of the common law and former statutes were still in force. It amplified the ordinance defining treason so as to check active opposition from the Loyalists and prevent "the Dangers which may arise from the Persons disaffected to the State." The counterfeiting of the bills of the State and of the Continental Congress was made a felony punishable by death. Other acts provided for the better regulation of the militia, the establishment of criminal courts, the collection of import duties, and the erection of admiralty courts. A radical but timely innovation in the fiscal policy of the State was introduced by an act which provided for the general assessment of property and the levying of an ad valorem tax on land, negroes, and other property. The Assembly also made provision for the administration of county affairs by the erection of county courts and the appointment of justices, sheriffs and registers in the several counties. On April 18th, it re-elected Caswell governor, Glasgow secretary of state, and all of the former councilors except Dry and Person whose places it filled with William Cray and William Taylor. The work of this Assembly fairly launched the new State upon her stormy voyage of independence and sovereignty.

A situation full of difficulties, dangers, and pitfalls confronted Caswell and his advisers. The remarkable fervor that had swept the colony into revolution and created an independent government had been followed by reaction. Enthusiasm had given way to apathy, and henceforth, as far as the people generally were concerned, support of the common cause was spasmodic and forced. This situation may
p423 be traced to four causes: first, the weakness of the executive under the new Constitution; second, the cleavage in the patriot party; third, the presence of a large and active Loyalist element in the population; and fourth, the utter breakdown of the financial systems of both State and United States.

The successful conduct of war requires concentration of responsibility and power. It was unfortunate, therefore, that North Carolina, especially at a time when there was no national executive, should have entered upon a long and exhausting war with an executive to which all real power had been denied. An active, aggressive and resourceful governor, seeing things that ought to be done and lacking authority to do them, was apt to chafe greatly under the restrictions. Caswell had not been in office a year before the mistake of the Convention in this respect became apparent. Urged to pursue more "spirited measures" for filling up the State's battalions, he replied that his hands were tied because "by the Constitution of this State, nothing can be done by the Executive power itself, towards this most desirable purpose" and complained of the Constitution "for cramping so much the powers of the executive." The longer the war continued, the more apparent became the mistake of the Convention in withholding power from the governor. In 1781, Governor Nash wrote, "The Constitutional power of a Government [governor] in this State, is at best but very small, and in time of War, insufficient for purposes of Government and Defence." In the military crisis of 1780‑81 the executive broke down completely, and to meet the emergency the Assembly created first a board of war which it later superseded with a council extraordinary of three persons upon whom it conferred extra-constitutional powers, authorizing them not only to exercise all the powers "which the council of state might have exercised in a state of war," but also "to do and execute every other act and thing which may conduce to the security, defence and preservation of this State." But this expedient did not solve the difficulty since it merely divided the executive functions among three men instead of concentrating and unifying them under a single head. As Governor Nash declared in a letter to Burke, the executive power was so divided and sub-divided that it had lost its force and "men, not knowing whom to obey, obeyed nobody."

The constitutional deficiencies of the chief executive would have been greatly minimized if the several governors had
p424 had the support of a united constituency, determined to subordinate all lesser objects to the winning of independence. Unfortunately the cleavage in the patriot party rendered such united support impossible. During the session of the first Assembly under the Constitution, Abner Nash writing from New Bern thought "we are all harmony" and expected to see "a perfect good agreement" prevail in the two houses. But Nash having just been elected speaker of the House of Commons saw things through too rosy a medium. At the very moment that he was predicting an era of good feeling, the Radicals were laying plans to elect John Penn to the Continental Congress in place of Joseph Hewes. "A warm struggle" ensued, in which Hewes was defeated. The result and the manner in which it was accomplished drove the iron into the souls of the Conservatives. Bitterly Johnston denounced the "fools and knaves" who were in control of the Assembly. "When I tell you," he wrote to Thomas Burke, a delegate in the Continental Congress, "that I saw with indignation such men as G–––––th R–––––d [Griffith Rutherford], T–––––s P_s_n [Thomas Person], and your Collegue J. Penn, with a few others of the same stamp, principal leaders in both houses, you will not expect that anything good or great should proceed from the counsels of men of such narrow, contracted principle, supported by the most contemptible abilities. Hewes was supplanted of his seat in Congress by the most insidious arts and glaring falsehood, and Hooper, though no competitor appeared to oppose him, lost a great number of votes. Quince for no crime alleged against him, but that he was a man of fortune, was turned out of his appointment of Naval Officer of Port Brunswick." Johnston resigned as treasurer, and Hooper, piqued at his loss of popularity, declined to accept the seat in Congress to which he had been elected. Other Conservatives following the example of these leaders withdrew from public life.

Their retirement of course left the Radicals in control. Since Caswell was acceptable to them, as long as he was eligible for the office, they made no contest over the election of governor. In 1777, 1778, and 1779, therefore, Caswell was unanimously elected. But in 1780 he was no longer eligible, and for the first time a contest in the election of governor ensued. Abner Nash, who is generally reckoned as a Conservative, was elected, but before his term was half gone the radical Assembly seem to have repented of their choice, and by an act creating a board of war deprived the governor of
p425 most of the few powers which the Constitution had conferred on him. Nash denounced the act as an unconstitutional change in the form of government. "When you elected me Governor of the State," he wrote, "you presented me the Bill of Rights and the Constitution, at the same time you presented me with the Sword of State as an emblem of the power I was invested with for the protection of the Constitution and the rights of the people, and in a solemn manner you bound me by an oath to preserve the Constitution inviolate; and yet four months after my election the very same Assembly deprived me of almost every power, privilege and authority belonging to my office. * * * I have no doubt that the secret Enemies of our Free Constitution exult at the introduction of such innovation and rejoice at seeing the first office in the State rendered useless and contemptible." Declaring that the creation of the Board of War left the governor nothing "but an empty title," he declined to permit himself to be considered for re-election. To succeed him, therefore, the Conservatives nominated Samuel Johnston, the Radicals, Thomas Burke. Burke was elected, but during his term, he was captured by a band of Tories and sent to Charleston, then held by the British, as a political prisoner. Unfortunately for his fame he broke his parole, made his escape and returning to North Carolina reassumed the duties of his office. Although he insisted that the cruelties and the illegal treatment to which he had been subjected justified his action, nevertheless it ruined his political career and compelled him to retire to private life.b

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Governor Abner Nash

From a portrait in the Governor's office, Raleigh

In the election of 1782, at which Burke's successor was to be chosen, party spirit rose to a height greater than it had yet attained in the State. Five candidates were in nomination, but the real contest was between Samuel Johnston and Alexander Martin. The Conservatives had good grounds for anticipating victory when their hopes were dashed to pieces by the course of Richard Caswell who threw all of his great influence in the scale with Martin. His action was decisive and Martin was elected. Johnston and his friends brought out of the contest a bitter grudge against Caswell, and eagerly awaited an opportunity for retaliation. It came sooner than they could have expected. In 1783, Caswell, again eligible under the Constitution, appeared "with all his interest and address" in the field against Martin. The Conservatives in the Assembly, now under the aggressive leadership of the able but vitriolic Maclaine, threw themselves into the
p427 contest for Martin with all the eagerness of avengers of imaginary wrongs. "Among others," wrote Maclaine, "I interested myself warmly for the present Governor, not only from principle, but in opposition to a man who had basely abandoned his important trusts, and deserted his colors in the hour of distress."4 Caswell himself describing the contest in a letter to his son, William Caswell, wrote: "Ten days ago Governor Martin was re-elected by 66 Votes against 49 who voted for me. Mr. Johnston and General Rutherford were in nomination, but neither was Voted for. The Edenton and Halifax men with a very few exceptions Voted for Governor Martin, saying I had crammed him down their throats last year and they were now determined to keep him there." In this election there appeared for the first time in our history the tendency, which so long prevailed in North Carolina, to divide in political matters along sectional lines. The West supported Martin, while the East, with the exception of the men of the Edenton and Halifax districts, who were moved by the motive mentioned by Caswell, and a few Cape Fear men, who wanted the help of the West in making Cross Creek the capital of the new State, supported Caswell. The contests, which have been described, show clearly that by 1783, the unanimity and harmony that had prevailed among the patriots in 1774 and 1775 had disappeared, that the factions of 1776 had become stronger and more clearly defined, and that they needed only the struggle that was yet to come over the Federal Constitution to turn them into full fledged political parties. Never again was North Carolina to enjoy that political unity and harmony that marked the opening days of the Revolution.

At the very time that the factions in the patriot party were becoming more and more irreconcilable, the Loyalists, recovering somewhat from their crushing defeat at Moore's Creek Bridge, were beginning to show signs of activity. In the summer of 1776, disaffection openly manifested itself in Guilford County; to General Rutherford's request for troops from the Hillsboro brigade for his expedition against the Cherokee, the Council of Safety returned a refusal because of "the many disaffected persons in that district and neighborhood;" while in Surry County the Tories were actually
p428 in arms against the provisional government. The inauguration of the new state government in April, 1777, was the signal for renewed activity on the part of the Loyalists. A Loyalist conspiracy in the Albemarle region was discovered just in time to prevent an uprising. About the same time "many evil persons" in Edgecombe and neighboring counties "joined in a most wicked conspiracy" against the new government. Disaffection was suppressed at the time, but continued to smoulder and two years later broke out again in a still more violent form. A Large number of persons in Edgecombe, Nash, Johnston, and Dobbs counties entered into an association by which they "obligated themselves to prevent the Militia from being drafted," to aid and protect deserters from the American army, and to resist the civil officers in the discharge of their duties. In the Cape Fear section, too, a militia officer reported to the governor that he "was alarmed by these dam rascals, the Tories," and Colonel John Ashe felt it advisable to take extraordinary precautions to prevent a descent upon Wilmington by the "Scotch Tories and others from Cross Creek and Bladen." In September, 1777, Governor Caswell wrote to Cornelius Harnett: "We have been alarmed with the rising of Tories and forming of conspiracies: the former among the Highlanders and Regulators and in the county [Chowan] in which you had the honor to draw your first breath, and in Bertie and Martin." In the West the situation was quite as bad, perhaps worse than in the East. Officers of Anson reported "many disaffected persons in our County." Tryon County was a hotbed of Tories. In the spring of 1779 a noted Tory leader, named John Moore, embodied 300 men in Tryon, forcibly prevented the execution of the draft, and spread terror throughout that region. Farther west, the conditions in Burke County might easily have been duplicated in Surry, Rowan, Guilford, and other western counties. In July, 1779, General Rutherford reported that bands of Tories were organized in Burke "who publicly Rob all the Friends of America;" that "British Officers were actually recruiting in that County;" and that the Tories openly boasted that "immediately after harvest they were to take up Arms and put to death the principal Friends to the Cause and March off to the Enemy." Indeed, in every section, in every county, in almost every neighborhood large numbers of the people were disaffected and only wanted a favorable opportunity to raise their hands against the new government.

The presence of the Tories not only menaced the peace
p429 of the State and the stability of the government, but also weakened the financial and military resources of the State. They refused to pay taxes or to contribute in any other way to the support of the government, and the civil authorities were compelled to use the militia for collecting the revenues of the State. An even more insidious and effective form of Loyalist propaganda was directed at the credit of the State. In 1779 Samuel Ashe, one of the judges of the Superior Court called the General Assembly's attention to the steady depreciation in the value of the State's bills of credit, adding, "nor can they without the immediate effectual interposition of the legislature continue at their present stand against the constant endeavours of the mongrel Tory Traders and others among us to destroy their Credit." The Tories offered an equally effective opposition to recruiting, and at times actually took up arms to prevent the enforcement of the draft. The State, therefore, was compelled to hold in reserve a considerable force for any emergency that might arise. The presence of these inveterate domestic enemies, therefore, not only cost the State considerable sums of money sorely needed by both state and continental treasuries, but retained at home many regiments of fighting men who should have been with Washington and Greene.

The policy of the State with respect to the Loyalists was one of the first questions that came up for consideration. The Whigs at first were inclined to be conciliatory. Although many Tories had but recently been "in actual Arms against the liberties of the United States of America," and in numerous other ways had given aid and comfort to the enemy, yet the Convention of 1776, hoping "that such Persons are now become sensible of the Wickedness and Folly" of their conduct, and eager to win for the new state government as much support as possible, determined to throw wide open the door of reconciliation. It therefore directed the governor to issue a proclamation offering free pardon to all who would take the oath of allegiance within ninety days. This generous offer the Loyalists seem to have interpreted as evidence of weakness in the new government and but few took advantage of it. Accordingly the Assembly at its first session entered upon a sterner policy. It adopted a test which held out to all the alternative of allegiance to the State or banishment. True to their principles most of those who were Loyalists from conviction accepted the latter choice and however much we may deprecate their mistaken judgment we cannot withhold our admiration from men who preferred
p430 exile to apostasy. Many of these exiles were people of wealth, intelligence and character. In July, 1777, a large vessel sailed from New Bern carrying "a great number of Tories," with their families, "mostly Gentlemen of Considerable Property." Among them was Martin Howard, last chief justice of North Carolina under the Crown. Many others departed from Bertie, Chowan, and Halifax counties. Samuel Johnston testified that those who were from Chowan were "men of fair character and inoffensive in their conduct." The Scotch Highlanders departed in large numbers. "Two-thirds of Cumberland County intend leaving this State," reported the colonel of the militia of that county in July, 1777. "Great Numbers of these infatuated and over-loyal People," said the North Carolina Gazette, in October, 1777, "returned from America to their own Country," among whom was Flora MacDonald. Others found new homes in Nova Scotia. Among the prominent Highlanders who left North Carolina in 1777 was John Hamilton, "a merchant of considerable note," who sailed from New Bern on a "Scotch transport, having on Board a Number of Gentlemen of that Nation." Hamilton afterwards organized these Highlanders into a Loyalist regiment which on numerous battlefields in the South worthily maintained the high reputation of their race for its fighting qualities. This exodus of the Highlanders from North Carolina in 1777 was comparable to their exodus from Scotland after Culloden. The policy which was responsible for it was perhaps the only course open to the new State; nevertheless one may be permitted to regret that circumstances compelled North Carolina to drive from her borders so many men and women of this strong, virile race.

As the war progressed feeling against the Tories grew more bitter. Trials for treason became frequent and the Assembly entered upon more vigorous measures. In November, 1777, it determined upon a policy of confiscation, and in January, 1779, passed the first of a long series of confiscation acts. A still more sweeping act was passed in October of that year. This act not only confiscated the property of Loyalists generally, but mentioned by name a long list of the more prominent members of that party among whom were William Tryon, Josiah Martin, Edward Brice Dobbs, Edmund Fanning, Henry Eustace McCulloh, and John Hamilton. Its provisions excited such strong opposition that fifteen members of the House of Commons, under the lead of Willie Jones, entered a vigorous protest against it declaring that it involved "such a Complication of Blunders and
p431 betrays such ignorance in Legislation as would disgrace a Set of Drovers." Their objections were, first, that it violated the conditions of the Treason Act of 1777 under which many Loyalists had left the State, and, second, that it repealed the provisions made in the Confiscation Act of January, 1779, for "such unfortunate and Innocent Wives and Children resident in the State, who had been abandoned by their Fathers and Husbands, and also for aged parents in particular Cases." The harshness of the act, and the vigor with which it was enforced, reveal the intensity of the feeling which the Tories had aroused against themselves. North Carolina, therefore, was not prepared to accept gracefully the clause in the Treaty of 1783 which stipulated that Congress should recommend to the several states the restitution of this confiscated property to its original owners. The State had not only received large sums from this source, but had guaranteed the title to the property sold under the confiscation acts upon which many of the purchasers had spent considerable sums. The treaty, therefore, was alarming both to the State which had sold the property and to the hundreds of individuals who had bought it. However, the delegates from North Carolina in the Continental Congress took pains to call the governor's attention to the fact that the provision was "but a promise of a recommendation," which the Assembly could comply with or not, and the Assembly thus re-assured treated it with silent contempt.

To the weakness of the executive, the intensity of party spirit, and the menace of the Tories, must be added a fourth cause of the failure of North Carolina to throw her full strength into the war for independence, i.e., the breakdown of her finances. The State entered upon its independent career with an empty treasury, without credit, and with no intercolonial or foreign commerce as a basis of credit. The necessities of the new government and the demands of war imposed upon the people financial burdens and responsibilities beyond anything they had ever experienced. If they did not solve their financial problems with the same wisdom and success with which they solved their political problems, they were not alone in their failure. No other state, nor the United States, obtained any better results.

The principal sources from which North Carolina derived her means for support of the war were issues of paper money, taxes, loans, and the proceeds of the sale of confiscated property. Paper money the people of North Carolina had been familiar with from long experience and the Provincial Congress
p432 naturally resorted to it as the means for financing the war. In September, 1775, Congress issued $125,000, and in May, 1776, $1,000,000, in bills of credit. To maintain their value and provide for their redemption the faith of the province was pledged and a poll tax levied to begin, for the redemption of the first issue, in 1777 and to run for nine years, for the redemption of the second, in 1780 and to run for twenty years. The delay in the levy and collection of these taxes and the uncertainty as to the sums they would ultimately yield had a bad effect on the credit of the province. This fact coupled with the sudden expansion of the currency, the counterfeits with which the colony was immediately flooded, and the effect of the unfavorable comparisons which the Tories were at pains to make between the bills of the Provincial Congress and those issued under authority of the British government, resulted in rapid depreciation. The General Assembly, therefore, thought it advisable to retire both these issues, and in August, 1778, passed an act issuing $2,125,000 of new bills, making them a legal tender, and directing that $1,575,000 be used to redeem the old bills. But this mandate was not carried into effect because as the demands upon the treasury increased from year to year, the Assembly postponed the date at which the old bills were to be redeemed. The old bills, therefore, remained in circulation, but the failure of the Assembly to keep faith with their holders by refusing either to redeem them or to levy and collect the taxes promised for their redemption, had an unfortunate effect upon their value, as also upon the credit of the State. As the war progressed other issues of paper currency became necessary. In 1779 $1,250,000, in 1780, $3,100,000, and in 1783, $250,000 were emitted. All of these bills were made a legal tender, but except in case of the last no tax was levied for their redemption.

In spite of every effort to sustain the value of the currency depreciation set in early and progressed rapidly. In December, 1778, the decline in value was about 5 per cent; a year later it was 30 per cent. In January, 1779, Samuel Ashe declared in a communication to the General Assembly, "that the great depreciation of our Bills of Credit and the rapid and extravagant rise in price of every necessary article," made it impossible for him to live on his salary. "The Depreciation of our Bills," he said, "is a matter of such notoriety that every one knows and feels it. Their value at this time bears not the proportion of twelve to one of their original value." The rapidity with which depreciation progressed
p433 may be seen by comparing Ashe's statement with the prices quoted by Richard Cogdell of New Bern in August, 1780. "Corn," he wrote, "[is] £100 per Bble., Meal £20 per bushel, Beef £48 per pound, Mutton £4 per lb., and every thing in proportion. A String of Fish which used to cost 12d is now 1920d, or 20 Dollars. What a horrible prospect this exhibits!" But the worst was not yet. By the close of the year the Assembly itself was compelled by law to recognize a depreciation in its currency of 800 per cent.

As early as 1777, the General Assembly began to realize that it could not carry on the government indefinitely on a paper currency and that it must sooner or later resort to taxation. Although convinced of its necessity, the legislature approached this policy reluctantly and entered upon it timidly. No ad valorem tax had ever been levied in North Carolina, and what the effect of such a tax would be, no man could tell. But it had to come, and at the April session, 1777, the Assembly directed that a general assessment be made of all property in the State, levied upon it a tax of half-penny in the pound, and provided machinery for its collection. This act fixed the future policy of the State. As the expenses of the war increased and the currency depreciated, the yield from this source was never very large. In 1786 after eleven years of trial the estimated receipts from taxation were less than £65,000. Loose methods of assessment, inefficiency of administration, and corruption among officials consumed a large per cent of the revenues. In 1781 Governor Burke discussed these matters at length in his annual message, urged the Assembly "to provide effectually for calling to speedy account and payment all public collectors and other accountants," and declared that "the numberless hands at present employed in the collecting of the public revenues exhaust much of the product and create perplexities and difficulties without and in the public accounts."

In 1780 the tide of war rolled back once more upon the South. Georgia and South Carolina were quickly overrun by the enemy, who then threatened North Carolina with immediate invasion. An army of defense had to be immediately raised, equipped and supplied. But Governor Nash informed the General Assembly that the treasury was empty and the financial resources of the State exhausted. How to obtain means of supplying the army was accordingly an urgent problem. The Assembly had found that the continued emission of paper money had a "tendency to increase the
p434 prices of necessaries" which was "greatly injurious to the public." No relief could be expected from taxation. "The public money is unaccounted for," Governor Burke told the Assembly, "the taxes uncollected or unproductive, * * * and the Treasury totally unable to make payment." Even had the State had the money, the high prices of all necessities would have been practically prohibitory. In this emergency, therefore, the Assembly hit upon two new methods of supplying the public needs, i.e., a specific tax and loans. The former payable in Indian corn, wheat, flour, oats, rye, rice, pork and beef, was continued through 1782. Warehouses were established and stored with supplies which were distributed to the army. The system was primitive, cumbersome and wasteful, yet it is difficult to see how the army could have been supplied without it. But some money was absolutely necessary. In September, 1780, therefore, the Assembly determined upon a system of loans. The treasurers were authorized to issue loan certificates bearing interest at 5 per cent and exempt from all taxation, and to appeal to the people to lend the State money on them. The same act levied a tax "equal to double the amount of the public tax," i.e., 12 pence in the pound, for the redemption of these certificates when due. Another source of revenue was the confiscated property of the Loyalists which in 1783 was pledged to redeem the issue of $250,000 of bills of credit, authorized for the payment of the dues to soldiers.

North Carolina's failure to meet her financial obligations to the Confederacy was even more conspicuous than her failure to meet her own obligations. In this respect, however, the State was not peculiar since the same statement may be made of all the states. At the beginning of the struggle the rule was adopted that the states should meet all expenses incurred for purely state purposes, but those incurred in the common cause should be met out of a common or continental treasury. The chief sources from which the continental treasury drew its revenues were bills of credit, domestic loans, foreign loans, and requisitions on the states. During the war the Continental Congress issued bills of credit to the amount of $242,000,000, which it apportioned among the states for redemption on a basis of population. The several states pledged their faith to redeem this currency, but none kept its pledge, and the continental currency having no other basis of value depreciated even more rapidly than the state currency. To say that anything was "not worth a continental" became a common expression for describing its utter worthlessness.
p435 In 1776 Congress decided to supplement its bills of credit with loan certificates and accordingly established loan offices for soliciting loans for which it issued certificates bearing at first 4 per cent interest, later 6 per cent. By 1783, $65,000,000 had been raised in this way of which North Carolina had contributed but $1,200,000, an amount below the State's proportion whether estimated on a basis of wealth or of population. After the consummation of the alliance with France in 1778 foreign loans became the principal item in continental finances, and from 1779 to the close of the war interest on these loans constituted one of the most pressing demands upon the Continental Treasury. Congress having no power of taxation was compelled to look to the states to supply the funds to meet these demands, and it looked in vain.

The case of North Carolina was but typical; from 1781 to 1784 the State was too exhausted financially to make any contribution toward the payment of the interest on the public debt. For the same reason the State fell badly behind in its general contributions to the support of the war. Congress had adopted population as the basis for its requisitions on the states both for men and money, and while this was not quite fair for the southern states with their large negro population, yet they had readily accepted it. The North Carolina Congress of August, 1775, had unanimously pledged the full support of the colony to the continental cause on this basis, but as the war progressed and its burdens increased, the State found itself increasingly unable to redeem this pledge. In August, 1781, it was indebted to the Continental Treasury $18,230,000; while at the beginning of 1784 three other requisitions had been made on which the State had paid nothing. But here again North Carolina's case was not peculiar, for none of the states had met their quotas. From November 22, 1777, to October 6, 1779, for instance, there were four requisitions on the states calling for $95,000,000 in paper money, on which the payments amounted to less than $55,000,000; while three specie requisitions from August 26, 1780, to March 16, 1781, amounting to more than $10,000,000, yielded but little more than $1,500,000. The basis of assessment was obviously inequitable, and each state was so afraid that it contribute more than its just share that it took pains to contribute less.

With all these obstacles and difficulties, and numerous others scarcely less serious, how was it possible for the "men of '76" to carry their cause through to its final triumph?
p436 The answer to this question is certainly to be found in the reality of the existence of those intangible and spiritual forces which so many modern historians, recognizing only material forces in shaping the affairs of mankind, refuse to consider as proper subjects for historical notice. Devotion and loyalty to their ideals, confidence in the justice of their cause, and faith in its ultimate triumph were quite as real to the Revolutionary patriots as were the material obstacles with which they had to deal, and it was the reality of these spiritual forces that enabled them to overcome difficulties, to endure sacrifices and hardships, to rise superior to disaster, and to wring victory out of defeat. No man not a professional cynic can read the public or private correspondence of the public men of that time without feeling the truth and justice of these observations. Had North Carolina been able to set up an efficient government, had all her people been in "a perfect good agreement," had there been no vigilant domestic foe nestling in her bosom, had she enjoyed a substantial financial credit, the task of her leaders would have been far easier and simpler, but it would not have called forth that daring in action, that constancy in good and in ill fortune, that fortitude in suffering, that faith which shone brightest in the darkness of defeat which entitles them to the admiration and gratitude of all succeeding generations. "While every community and section of the State was more or less divided in sentiment, it is to the honor of the public men of that period that no representative of the people, no man who had been honored with their confidence flinched when the test came or failed to move steadily forward through the gloom and obscurity of the doubtful and hazardous issue."5

The Author's Notes:

4
Probably referring to Caswell's action in resigning his commission after the battle of Camden in resentment at the appointment of General Smallwood of Maryland to the command of the North Carolina militia.